Summary
The Government's draft Bill proposes worthwhile reforms
of defamation law, notably in effectively removing trial by jury,
with its associated high costs, and in providing better protection
for publishers by introducing the new single publication rule.
Yet the changes to the defences available against libel claims,
while welcome, do not always achieve the clarification sought.
For a Bill that is overdue, the Government's current draft may
be thought modest. It does not, in some important respects, strike
a fair balance between the protection of reputation and freedom
of speech. More fundamentally, we have determined that it is procedural
change that, while understandably omitted from the draft Bill,
is essential to addressing the key problem in defamation law—the
unacceptably high costs of litigation. There is also the challenge
of enforcing defamation law in the global, online environment.
The Government's reforms to defamation law and practice should
form part of a strategic approach to the wider reform of civil
litigation that embraces procedural change, the operation of the
related law on privacy and the relationship between Parliament
and the courts.
In our consideration of the Government's draft Bill
and the wider issues on which the Government invites comment we
have established four core principles, as follows.
- Freedom of expression/protection
of reputation: some aspects of current law and procedure should
provide greater protection to freedom of expression. This is a
key foundation of any free society. Reputation is established
over years and the law needs to provide due protection against
unwarranted serious damage;
- Reducing costs: the reduction in the extremely
high costs of defamation proceedings is essential to limiting
the chilling effect and making access to legal redress a possibility
for the ordinary citizen. Early resolution of disputes is not
only key to achieving this, but is desirable in its own right—in
ensuring that unlawful injury to reputation is remedied as soon
as possible and that claims do not succeed or fail merely on account
of the prohibitive cost of legal action. Courts should be the
last rather than the first resort;
- Accessibility: defamation law must be made easier
for the ordinary citizen to understand and afford, whether they
are defending their reputation or their right to free speech;
and
- Cultural change: defamation law must adapt to
modern communication culture, which can be instant, global, anonymous,
very damaging and potentially outside the reach of the courts.
These principles have guided us in developing our
recommendations and are clearly evident throughout our Report.
In support of the better protection of freedom of speech, we propose
measures to prevent corporations from using their financial muscle
to silence critics by the threat of legal action, unless the court
accepts at the outset that there may be a likelihood of the corporation
suffering substantial financial loss. We also recommend a higher
threshold of seriousness in order for libel claims to progress;
improved protection for scientific debate; some additional protection
for publishers, particularly secondary publishers, including those
online; and a new?/specific? statutory protection of communication
between constituents and their MP. We have also sought to provide
balancing protection of reputation, for example in giving the
courts a new power to order the publication of their judgments
when necessary.
We have pursued our key aim of reducing the costs
of defamation action by recommending a new approach which should
encourage cheaper, more efficient alternative methods of dispute
resolution, such as mediation and arbitration, and more effective
management of those few cases that do reach court.
Our core principle of improving the accessibility
of the law to the ordinary citizen has been promoted by our preference
for putting aspects of the common law into statute and the introduction
of easily-understood and relatively inexpensive new procedures,
particularly in the online environment.
Modern means of communication represent perhaps the
biggest challenge facing the operation of the law on defamation.
The practical realities of policing a global conversation, straddling
different legal jurisdictions, require us to adopt imaginative
means of mitigating the serious damage to reputation that can
be wrought at the click of a button. We propose a clear and simple
regime governing the responsibilities of internet service providers
and the means of redress available to those who believe their
reputation has been damaged unlawfully online. This regime covers
the publication of material on the full range of electronic platforms
that currently exist and will no doubt develop further. As part
of this approach we seek to promote a cultural change in order
to limit the credibility of, and therefore damage that can be
caused by, material that is published anonymously.
Some of the proposals we have brought forward will
require further detailed work, but we believe they can be developed
to secure lasting improvements to the operation of the law on
defamation and its availability to the ordinary citizen. We look
forward to the Government taking them forward speedily in a revised
Bill and associated procedural reforms.
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